IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013478 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be paid for his service in the Army from 9 March 1976 to 16 November 1978.

2.  The applicant states that according to the entry date reflected on his Certificate of Release or Discharge from Active Duty (DD Form 214) he was not paid for 2 1/2 years of service and he asks what he can do to get paid for that service.

3.  The applicant provides a copy of his DD Form 214 for the period 16 November 1978 through 30 June 1992 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 8 March 1976, the applicant enlisted in the Regular Army (RA) in Denver, Colorado, for 3 years in the pay grade of E-3.  He successfully completed his training as a light vehicle driver.  

3.  The available records show that the applicant completed 2 years, 8 months, and 7 days of active service during his initial enlistment.  However, there is no DD Form 214 in his records covering this period of enlistment.  On 16 November 1978, the applicant reenlisted in the RA for 4 years.  He remained on active duty through a series of reenlistments and extensions.

4.  The applicant was honorably discharged on 30 June 1992 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 16-8, under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether the applicant is entitled to back pay for his service in the Army from 9 March 1976 to 16 November 1978.

2.  The applicant’s records show that he enlisted in the RA on 9 March 1976 and that he reenlisted on 16 November 1978.  There is no evidence in the available record and the applicant has not submitted any evidence that suggests that he was not paid during his initial period of enlistment.

3.  He completed over 16 years of net active service and nowhere in his records is there any indication that he notified his chain of command and/or the appropriate authorities that he was not being paid during any period of his enlistments while he was in the Army.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________XXX________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013478



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ABCMR Record of Proceedings (cont)                                         AR20080013478



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